Crowdsource/request for feedback, review: Hargreaves copyright reform consultation "preserving the public domain"

OK a blog isn't the best tool for this but here goes.

Open Digital will be submitting a response to the UK Government consultation on copyright reform.  I have a lot of views on this subject so have spent the last few months listening to what other groups are fighting for so I can narrow my own submission to the areas not so well covered by other groups.

For various reasons I've chosen to focus on preserving the public domain (works for which the copyright has expired) and ask for the law to be clarified so that if can not claim a new copyright when I take a picture of a public domain artwork or digitise a public domain sound recording.

This will bring the law in line with US law as regards photographs of 2-D art works, and I see a strong parallel between a photo of a 2-D artwork and a format-shift of a sound recording.

I would dearly welcome comments, corrections, suggestions and any other feedback on the following. Please use the comments section below, email review@opendigital.org for ping us on twitter @Open_Digital

Thanks,
James

DRAFT SUBMISSION TO HARGREAVES

Update 16:19 clarified New York (ht @Copyrightgirl) and added paragraph about Wikimedia (private comment via email).

Open Digital calls on the Government to clarify the copyright situation as to faithful reproductions of existing works and in particular protect the public domain by removing any copyright protection for faithful photographic (including digitally scanned) reproductions of 2-dimensional art works and faithful copies of musical works that are in the public domain.

In parallel to the debate around format shifting, online businesses and individuals who make use of digital self-publishing tools are finding online uses for works already in the public domain.

But they face a threat from copyright claims made by the individuals or organisations responsible for photographing or scanning the original works.

UK case law in this area is not clear, so whether or not the Government and Parliament agrees with my suggestion set out below, there is opportunity to clarify the law in this area to provide clear guidance to the public on their rights.

In other jurisdictions such as United States New York, case law is clear (Bridgeman v Corel Corp, 1999) and does not grant copyright protection to photographs of 2-dimensional public domain art works, and I argue UK law should mirror this.

Wikimedia foundation has unilaterally declared a global policy (ref) mirroring the legal situation in New York, potentially opening itself up to legal challenges in other jurisdictions.

I argue a strong analogy exists between a digitising (format shifting) or re-recording of a sound recording and faithful photographic reproduction.

Allowing a copyright to exist in a faithful representation of a public domain work such as a painting, drawing or sound recording can have the effect of substantially prolonging the effective release into the public domain of certain published works.  This appears contrary to public domain provisions in copyright law.

Whilst there is one seemingly powerful argument in favour of providing protection for reproductions - that copyright acts as an incentive for those wishing to invest in digitising our cultural heritage - this must be balanced against the potential for organisations to abuse their monopoly of ownership, resulting instead in fewer works appearing online for public consumption; instead appearing behind paywalls or protected in some other way.

Whilst there is no research I'm aware of in this area, anecdotal evidence shows volunteer documenting and archiving efforts by groups such as Wikimedia Foundation and Project Gutenberg receive incredible public support.  Individuals seem motivated to work for free to reproduce the public domain in digital format, questioning whether a financial incentive in the form of a market intervention (copyright) is necessary.

As well as my main argument - that the public domain should be accessible to the public without restriction - providing protection for reproductions via copyright questions a fundamental principle of copyright. 

Copyright is intended to support the creative industries by providing protection for creators and those who invest in creation.  Creation must include some element or originality, and faithful reproduction by definition minimises originality.

Copyright is not intended to reward skill, it is intended to reward creativity. Even if it were, modern photographic reproduction techniques involve little if any skill and in some cases the reprographic process can be completely automated.  

By allowing a copyright to exist in a scan of a drawing provides a reward for merely pressing a button.

Therefore if incentives are needed to encourage digital archiving activities, copyright is not the right method to provide these incentives.

Allowing copyright to exist in a faithful reproduction also causes public confusion.  It can be difficult even for a skilled person to differentiate between a copy of a copy and a separate copy of the original. 

This is also true for automated digital identification and copyright enforcement techniques.  It is likely to cause false-positive matches for online automated content identification and protection systems.  

Such systems are used by online publishers to detect suspected copyright infringement and are unlikely to make a distinction between a separate copy of the original and a copy of a copy. 

This will cause particular problems for users of services such as YouTube, a service which provides a semi-automated mechanism to alert content owners that a video with a similar soundtrack has been uploaded.

The semi-automated nature of content protection procedures couples with the high volume of notifications handled today by large rights holders creates a real risk that an "authorised" public domain copy could be improperly blocked by the copyright owner of another similar almost indistinguishable copy. 

In summary I believe allowing a reproduction of a public domain work to have its own separate copyright results in a situation nothing short of a farce, where multiple almost indistinguishable copies coexist, with multiple owners and each with differing protection terms. 

One legislative option which would minimise the impact on existing businesses reliant on layered copyrights in mechanical reproductions as well as other unforeseen and unintended consequences is to design legislation such that it only affects public domain works.  

For example, the copyright protection term of any faithful reproduction could be limited to the unexpired term in the original, thereby allowing mechanical recording rights to coexist until the original performance enters the public domain.

My primary interest is to ensure public domain works are widely available to access and re-use, as is the intention of limited-term copyright law. 

ENDS